Bijaya Das (Since Dead) vs Miss Shantilata Padhi And Another
2023 Latest Caselaw 3622 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No. 4620 of 2016
                          (Through hybrid mode)


 Bijaya Das (since dead)                           ....                 Petitioner
 Rajesh Kumar Das @ Rajesh Das

                                     -versus-



 Miss Shantilata Padhi and another                 ....        Opposite Parties



 Advocates appeared in the case:

         For petitioner         -       Mr. Asok Mohanty, Sr. Advocate

         For Opp. Parties -             Mr. Rajeet Roy, Advocate



              CORAM:
                           JUSTICE ARINDAM SINHA
                           JUSTICE SANJAY KUMAR MISHRA
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                    Date of hearing and judgment: 18.04.2023
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ARINDAM SINHA, J.

1. Mr. Mohanty, learned senior advocate appears on behalf of

petitioner-management. He submits, there should be interference with

award dated 31st December, 2015, primarily because his client was not

// 2 //

heard. He draws attention to procedural order dated 16th December,

2015 made by the labour Court. Text of the order is reproduced below.

"The 2nd party workman is present.

A petition for time appears to have been signed by the M.D. of the 1st party Management has been received through post. The 1st party Management is absent on repeated calls. None is present to press such petition. No document has been filed to show that the Authorised Representative of Management Miss Manju Mohapatra is ill. Heard the 2nd party who objected the petition for time. In the above circumstance the petition for time received from the 1st party Management through post is rejected. The case of 1st party Management is closed.

Put up on 21.12.2015 for argument."

2. He submits, his client had a good case before the labour Court,

which could not be urged. The working person was not only inefficient

in discharging her duties but also had been absent without authorization.

In the circumstances, there was issued termination letter dated 3rd June,

2013, terminating her service with effect from 7th June, 2013. Pursuant

to the termination, the working person obtained her dues and thereafter

got engagement in other hotels, as would appear from her affidavit filed.

In the circumstances, for purpose of compliance with principles of

natural justice, in enabling his client to put forward its case in the labour

Court, impugned award be set aside and quashed.

// 3 //

3. Mr. Roy, learned advocate appears on behalf of the lady. He

submits, his client had worked as receptionist for long 28 years in the

hotel, under the management. Admittedly, there was no inquiry

conducted into the allegations, for the first time made in the termination

letter. The management, after having filed written statement, chose not

to appear in the labour Court. He submits, there was justification for

issuance of procedural order dated 16th December, 2015. There should

not be interference.

4. We find from disclosures in the writ petition that there was

conciliation, wherein the management participated. Impugned award

says that the reference was by letter dated 14th May, 2015. Paragraph-3

of impugned award says that the management entered appearance and

filed written statement on 30th October, 2015. Procedural order dated

16th December, 2015, relied upon by the management, was order no.11

passed in the reference. There is no further mention of participation by

the management. Going by text of said procedural order dated 16th

December, 2015 we note that though a time petition signed by the

Managing Director had been dispatched by post to the labour Court,

none was present to move the petition. On query from Court Mr.

Mohanty submits, the written statement was placed in the labour Court

by authorized representative of the management. We find from record of

// 4 //

appearance in impugned award that the management had been

represented, atleast on some occasions, in the labour Court.

5. The award faithfully reproduces case of the management in the

written statement. That case remained on pleadings, without evidence

adduced in support thereof. From pleadings in the written statement,

there appears significant omission to allege conduct of enquiry. The

labour Court found that there was no enquiry prior to issuance of the

termination letter. Text of the termination letter is reproduced below.

"We have thankful to you for rendering your valuable service for past 28 years to our hotel as on duty of reception. But last few years dealings with guest is not satisfactory neither you come to your duty in right time. In duty hour you depend some other assistance without taking your duty responsibility in the hotel it is found by management.

Many customers has express their unhappiness to your dealings while they expect a better result from reception. You always found lazy and do not complete your work and left reception without any reliever which cost lot of loss and damage to the hotel.

Last seven days you are absent in duty without any reason and without any information to the management. So finally the management has decided not to take your service any further to the hotel with effect from 7th of June, 2013.

// 5 //

Kindly receive the notice and do needful to settle your on further account during service period you are liable to get."

It appears from the termination letter that for last few years prior to

issuance thereof the management had impression that duty discharged

by the lady was not satisfactory. Yet it does not refer to any notice

given to her, to improve her performance. There is further allegation that

the lady had left her post without any reliever. This absence could have

been proved by the management, on the concerned reliever taking the

stand and giving evidence. The only ground that emerges, therefore, is

that the lady was absent for 7 days prior to issuance of the termination

letter, being cause for her termination. This ground was required to be

established on an inquiry made.

6. The lady produced the termination letter as Ext.1. She took the

stand and deposed on her case, regarding violation of provisions in

Industrial Disputes Act, 1947. She has also filed affidavit dated 31st

March, 2023 herein. There is admission in the affidavit, of having

obtained employment between date of her termination and date of

impugned award. In event petitioner wants to rely on the admission, the

affidavit as a whole must then be relied upon. Successive engagements

admitted in the affidavit, the lady said on oath, she lost due to

// 6 //

interference by the Managing Director. In the circumstances, there is no

necessity to take into consideration the affidavit, for purpose of

adjudicating whether there ought to be interference with impugned

award by judicial review.

7. In view of aforesaid and more particularly that we cannot

sustain a ground, of rejection of an adjournment petition dispatched by

post and not moved on the date of hearing, as a good ground for

interference, we do not find reason to interfere. Furthermore, between

16th December, 2015 and 31st December, 2015, when impugned award

was passed, the management did not take any step to have procedural

order dated 16th December, 2015 recalled. 21st December, 2015 had been

fixed for argument. Clearly, the management was not vigilant about the

case in the labour Court.

8. In view of aforesaid, there is no merit in the writ petition. It is

dismissed.

(Arindam Sinha) Judge

(S.K. Mishra) Judge Sks